Matter of Mark a. ivener and Iivener & Fullmer, LLP, SEC Release No. 78657 August 24, 2016 Cease & Desist, Findings, Sanctions
UNITED STATES OF AMERICA
SECURITIES AND EXCHANGE COMMISSION
SECURITIES EXCHANGE ACT OF 1934
Release No. 78657 / August 24, 2016
File No. 3-17419
In the Matter of
MARK A. IVENER AND
IVENER & FULLMER, LLP
ORDER INSTITUTING CEASE-AND-DESIST
PROCEEDINGS, PURSUANT TO SECTION
21C OF THE SECURITIES EXCHANGE ACT
OF 1934, MAKING FINDINGS, AND
IMPOSING REMEDIAL SANCTIONS AND A
The Securities and Exchange Commission (“Commission”) deems it appropriate that cease-
and-desist proceedings be, and hereby are, instituted pursuant to 21C of the Securities Exchange
Act of 1934 (“Exchange Act”), against Mark A. Ivener and Ivener & Fullmer, LLP
In anticipation of the institution of these proceedings, Respondents have submitted Offers
of Settlement (the “Offers”) which the Commission has determined to accept. Solely for the
purpose of these proceedings and any other proceedings brought by or on behalf of the
Commission, or to which the Commission is a party, and without admitting or denying the findings
herein, except as to the Commission’s jurisdiction over them and the subject matter of these
proceedings, which are admitted, and except as provided herein in Section V, Respondents consent
to the entry of this Order Instituting Cease-and-Desist Proceedings, Pursuant to Section 21C of the
Securities Exchange Act of 1934, Making Findings, and Imposing Remedial Sanctions and a
Cease-and-Desist Order (“Order”), as set forth below.
On the basis of this Order and Respondents’ Offers, the Commission finds1
1. Respondents violated Section 15(a)(1) of the Exchange Act by acting as unregistered
broker-dealers in connection with their representation of clients who were seeking U.S. residency
through the Immigrant Investor Program. Respondents, an immigration attorney and a law firm,
advised their clients with respect to the need for an investment in EB-5 securities in order to qualify
for lawful permanent residency through a Regional Center and referred their clients to one or more
Regional Centers which led to securities purchases. In addition to receiving legal fees from their
clients, Respondents earned a commission from the Regional Center for each investment they
2. Mark A. Ivener, age 74, is a resident of Los Angeles County, California. He is a
licensed attorney specializing in immigration. During the relevant time period, he was a partner of
Ivener & Fullmer, LLP.
3. Ivener & Fullmer, LLP is a law firm located in Los Angeles, California.
4. The United States Congress created the Immigrant Investor Program, also known as
“EB-5,” in 1990 to stimulate the U.S. economy through job creation and capital investment by
foreign investors. The Program offers EB-5 visas to individuals who invest $1 million in a new
commercial enterprise that creates or preserves at least 10 full-time jobs for qualifying U.S.
workers (or $500,000 in an enterprise located in a rural area or an area of high unemployment). A
certain number of EB-5 visas are set aside for investors in approved Regional Centers. A Regional
Center is defined as “any economic unit, public or private, which is involved with the promotion of
economic growth, including increased export sales, improved regional productivity, job creation,
and increased domestic capital investment.” 8 C.F.R. § 204.6(e) (2015).
5. Typical Regional Center investment vehicles are offered as limited partnership
interests. The partnership interests are securities, usually offered pursuant to one or more
exemptions from the registration requirements of the U.S. securities laws. The Regional Centers
are often managed by a person or entity which acts as a general partner of the limited partnership.
The Regional Centers, the investment vehicles, and the managers are collectively referred to herein
as “EB-5 Investment Offerers.”
The findings herein are made pursuant to Respondents’ Offers of Settlement and are not binding on any
other person or entity in this or any other proceeding.
6. Various EB-5 Investment Offerers paid commissions to anyone who successfully
facilitated the sale of limited partnership interests to new investors.
Respondents Earned Commissions for Their Clients’ EB-5 Investments
7. From at least January 2009 through December 2011, Respondents earned
commissions from one EB-5 Investment Offerer totaling $450,000. These commissions were paid
pursuant to a “Referral Services Agreement” between Respondents and the specific Offerer.
8. Respondents advised their clients with respect to the need for an investment in EB-5
securities in order to qualify for lawful permanent residency through a Regional Center and referred
their clients to one or more Regional Centers, which led to securities purchases, and in one or more
instances provided information about a specific Offerer. Respondents earned transaction-based
commissions for their services from the EB-5 Investment Offerers. While some of Respondents’
activities overlapped with legal services, for which they earned fees, Respondents earned
transaction-based compensation for facilitating the investor’s transactions in EB-5 securities.
9. As a result of the conduct described above, Respondents violated Section 15(a)(1)
of the Exchange Act which makes it unlawful for any broker or dealer which is either a person
other than a natural person or a natural person not associated with a broker or dealer to make use of
the mails or any means or instrumentality of interstate commerce “to effect any transactions in, or
to induce or attempt to induce the purchase or sale of, any security” unless such broker or dealer is
registered in accordance with Section 15(b) of the Exchange Act.
In view of the foregoing, the Commission deems it appropriate to impose the sanctions
agreed to in Respondents Mark A. Ivener’s and Ivener & Fullmer’s Offers.
Accordingly, pursuant to Section 21C of the Exchange Act, it is hereby ORDERED that:
A. Respondents shall cease and desist from committing or causing any violations and
any future violations of Section 15(a)(1) of the Exchange Act.
B. Respondents shall pay, jointly and severally, within ten (10) days of the entry of
this Order, disgorgement of $450,000 and prejudgment interest of $87,855 to the Securities and
Exchange Commission for transfer to the general fund of the United States Treasury in accordance
with Exchange Act Section 21F(g)(3). If timely payment of disgorgement and prejudgment
interest is not made, additional interest shall accrue pursuant to SEC Rule of Practice 600 [17
C.F.R. § 201.600].
Payment must be made in one of the following ways:
(1) Respondents may transmit payment electronically to the Commission, which will
provide detailed ACH transfer/Fedwire instructions upon request;
(2) Respondents may make direct payment from a bank account via Pay.gov through
the SEC website at http://www.sec.gov/about/offices/ofm.htm; or
(3) Respondents may pay by certified check, bank cashier’s check, or United States
postal money order, made payable to the Securities and Exchange Commission and
hand-delivered or mailed to:
Enterprise Services Center
Accounts Receivable Branch
HQ Bldg., Room 181, AMZ-341
6500 South MacArthur Boulevard
Oklahoma City, OK 73169
Payments by check or money order must be accompanied by a cover letter identifying
Mark A. Ivener and Ivener & Fullmer, LLP as the Respondents in these proceedings, and the file
number of these proceedings; a copy of the cover letter and check or money order must be sent to
Stephanie Avakian, Deputy Director, Division of Enforcement, Securities and Exchange
Commission, 100 F St., NE, Washington, DC 20549-5553.
It is further Ordered that, solely for purposes of exceptions to discharge set forth in Section
523 of the Bankruptcy Code, 11 U.S.C. § 523, the findings in this Order are true and admitted by
Respondents, and further, any debt for disgorgement, prejudgment interest, civil penalty or other
amounts due by Respondents under this Order or any other judgment, order, consent order, decree
or settlement agreement entered in connection with this proceeding, is a debt for the violation by
Respondents of the federal securities laws or any regulation or order issued under such laws, as set
forth in Section 523(a)(19) of the Bankruptcy Code, 11 U.S.C. § 523(a)(19).
By the Commission.
Brent J. Fields